Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the ACP-EU Council of Ministers as regards the delegation of powers to the ACP-EU Committee of Ambassadors on the decision to adopt transitional measures to extend the ACP-EU Partnership Agreement
Date: 2019-05-17
Institutions: Directorate-General for International Cooperation and Development, European Commission
Subjects: ACP countries, ACP-EU Committee of Ambassadors, ACP-EU Council of Ministers, Cotonou Agreement, delegation of power, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 17.5.2019  COM(2019) 242 final 2019/0116 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the ACP-EU Council of Ministers as regards the delegation of powers to the ACP-EU Committee of Ambassadors on the decision to adopt transitional measures to extend the ACP-EU Partnership Agreement  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

The  Partnership  Agreement  between  the  EU  and  the  African,  Caribbean  and  Pacific  (ACP) 
Group of States1, signed in Cotonou on 23 June 2000, will expire on 29 February 2020. This 
Commission  proposal  concerns  the  Council  decision  on  the  position  to  be  taken  on  the 
Union's  behalf  in  the  ACP-EU  Council  of  Ministers  in  connection  with  the  envisaged 
adoption  of  a  decision  concerning  the  delegation  of  powers  to  the  ACP-EU  Committee  of 
Ambassadors  on  the  possible  application  of  transitional  measures  to  extend  the  ACP-EU 
Partnership Agreement.  

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The “Cotonou” Partnership Agreement”  

Since  2000,  the  Cotonou  Partnership  Agreement  (the  “Agreement”  or  “CPA”)  has  been  the 
framework for the EU's relations with 79 ACP countries. The Agreement was concluded for a 
period of 20 years, from 1 March 2000 until 29 February 2020. It was subsequently revised in 
2005 and 2010.  

2.2. 

The ACP-EU Council of Ministers  

The  ACP-EU  Council  of  Ministers  is  a  ministerial  level  body,  set  up  by  the  Agreement 
(Article  15  CPA).  It  comprises,  on  the  one  hand,  members  of  the  Council  of  the  European 
Union  and  members  of  the  European  Commission  and,  on  the  other,  a  member  of  the 
government of each ACP State.  

The office of the President of the Council of Ministers is held alternately by a member of the 
Council  of  the  European  Union  and  a  member  of  the  government  of  an  ACP  State.  The 
Council  of  Ministers  meets  as  a  rule  once  a  year  on  the  initiative  of  the  President  and 
whenever  it  seems  necessary,  in  a  form  and  a  geographical  composition  appropriate  to  the 
issues to be addressed. 
The functions of the Council of Ministers include, amongst other things2, taking the decisions 
necessary for the implementation and execution of the CPA. 

The Council of Ministers takes its decisions by common agreement of the Parties. In order for 
the decisions to be valid,  

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half the members of the Council of the European Union (i.e. 14 Ministers from EU 
Member States), 

one member of the Commission, and 

Council  Decision  of  19  December  2002  concerning  the  conclusion  of  the  Partnership  Agreement 
between  the  African  Caribbean  and  Pacific  Group  of  States,  of  the  one  part,  and  the  European 
Community  and  its  Member  States,  of  the  other  part,  signed  in  Cotonou  on  23  June  2000  (OJ  L  65, 
08.03.2003, p.27). 
According  to  Article  15(2)  CPA,  the  ACP-EU  Council  of  Ministers  shall  “(a)  conduct  the  political 
dialogue; (b) adopt the policy guidelines and take the decisions necessary for the implementation of the 
provisions  of  this  Agreement,  in  particular  as  regards  development  strategies  in  the  specific  areas 
provided for by this Agreement or any other area that should prove relevant, and as regards procedures; 
(c)  examine  and  resolve  any  issue  liable  to  impede  the  effective  and  efficient  implementation  of  this 
Agreement or present an obstacle to achieving its objectives; (d) ensure the smooth functioning of the 
consultation mechanisms”. 

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two-thirds  of  the  members  representing  the  governments  of  the  ACP  States  (i.e. 
government members from 55 different ACP States) 

have  to  be  present.  Any  member  of  the  Council  of  Ministers  unable  to  attend  may  be 
represented.  The  representative  shall  exercise  all  the  rights  of  that  member  (Article  15(3) 
CPA). 

Pursuant  to  Article  15(4)  CPA,  the  Council  of  Ministers  may  delegate  powers  to  the 
Committee  of  Ambassadors.  The  Council  of  Ministers  can  delegate  the  power  to  take 
decisions binding on the Parties. This delegation of powers shall take the form of a decision of 
the Council of Ministers. 

2.3. 

The ACP-EU Committee of Ambassadors  

The Committee of Ambassadors is established pursuant to Article 16 CPA. It comprises, on 
the  one  hand,  the  permanent  representative  of  each  Member  State  to  the  EU  and  a 
representative of the Commission and, on the other, the head of mission of each ACP State to 
the  EU.  The  office  of  Chairman  of  the  Committee  of  Ambassadors  is  held  alternately  by  a 
Permanent Representative of a Member State designated by the Union, and a head of mission 
representing an ACP State, designated by the ACP States. 

The Committee of Ambassadors assists the Council of Ministers in the fulfilment of its tasks 
and  carries  out  any  mandate  entrusted  to  it  by  the  Council  (Article  16(2)  CPA).  In  this 
context, it can adopt decisions binding on the parties within the mandate conferred on it by the 
Council of Ministers. 

The  Committee  of  Ambassadors  also  monitors  the  implementation  of  this  Agreement  and 
progress towards achieving the objectives set therein. The Committee of Ambassadors meets 
regularly, in particular to prepare the Council sessions and whenever it proves necessary. 

2.4. 

Transitional measures 

The  Cotonou  Partnership  Agreement  expires  on  29  February  2020.  In  accordance  with  the 
first  subparagraph  of  Article  95(4)  of  the  Agreement,  negotiations  towards  a  new  ACP-EU 
Partnership Agreement were launched in September 2018. In case the new Agreement is not 
ready  to  be  applied  by  the  above  expiry  date,  measures  need  to  be  in  place  to  avoid  legal 
vacuum in the EU-ACP relations. 

Article  95(4),  second  subparagraph  CPA  reads  as  follows:  “The  Council  of  Ministers  shall 
adopt  any  transitional  measures  that  may  be  required  until  the  new  Agreement  comes  into 
force”. As per Article 95(4) second subparagraph CPA, transitional measures can be applied 
to extend the applicability of all or parts of the CPA, until the date of application of the new 
Agreement (provisional application or entry into force after ratification by all Parties). 

In  order  to  maintain  legal  continuity  with  the  ACP,  should the  new  Agreement  not  become 
applicable  before  the  expiry  of  the  existing  legal  framework,  it  is  necessary  to  adopt 
transitional measures to extend the application of the current Agreement.  

The  decision  on  transitional  measures  (i.e.  which  part(s)  of  the  Agreement  to  apply 
transitionally  and  until  when)  can  be  either  taken  by  the  Council  of  Ministers  itself  or  the 
latter can delegate the power to adopt such decision to the Committee of Ambassadors. 

2.5. 

The envisaged act of the Council of Ministers 

According to  the Rules  of Procedure of the Council of Ministers, it meets  once  a  year. The 
44th session of the Council of Ministers is to take place in Brussels on  23-24 May 2019. As 
the content and timing of transitional measures has not been discussed with the ACP side, it is 
impossible for the Council of Ministers to adopt the transitional measures. 

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As  no  further  meetings  of  the  Council  of  Ministers  are  foreseen  before  the  expiry  of  the 
Agreement it is necessary that the decision to adopt transitional measures pursuant to Article 
95(4)  CPA  be  delegated  to  the  ACP-EU  Committee  of  Ambassadors.  The  Committee  of 
Ambassadors  can  ensure  that  the  decision  on  transitional  measures  is  taken  in  a  timely 
manner. 

Therefore, during its 44th session the ACP-EU Council of Ministers is to adopt a decision to 
delegate  the  powers  to  adopt  transitional  measures  to  the  ACP-EU  Committee  of 
Ambassadors (‘the envisaged act’). 

The  purpose  of  the  envisaged  act  is  to  delegate  powers  to  the  ACP-EU  Committee  of 
Ambassadors, on the decision to apply transitional measures, in accordance with Article 15(4) 
of  the  Agreement,  which  provides:  ‘The  Council  of  Ministers  may  delegate  powers  to  the 
Committee of Ambassadors’. The envisaged act will become binding on the Parties. 

When the content and duration of the transitional measures will have been determined by the 
Parties,  the  Committee  of  Ambassadors  will  exercise  its  delegated  powers  and  adopt  the 
decision on transitional measures as  foreseen in  Article 95(4) CPA.  In order to  prepare that 
decision  by  the  Committee  of  Ambassadors,  another  Council  decision  under  Article  218(9) 
TFEU would be required to define the position of the Union. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3. 
In view of the above, the proposed position of the Union is to adopt at the 44th session of the 
ACP-EU Council of Ministers the envisaged act and thus entrust the ACP-EU Committee of 
Ambassadors to adopt the decision on transitional measures pursuant to Article 95(4) CPA. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’3. 

4.1.2.  Application to the present case 

The ACP-EU Council of Ministers is a body set up by an agreement, namely Article 15(1) of 
the ACP-EU Partnership Agreement signed in Cotonou on 23 June 2000. 

The  act  which  the  ACP-EU  Council  of  Ministers  is  called  upon  to  adopt  constitutes  an  act 
having legal effects. The envisaged act will be binding under international law in accordance 
with Article 15(3) of the Agreement.  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to, generally, the functioning of the 
international bodies set up on the basis of the CPA and the functioning of the CPA as a whole 
(potentially extending its application beyond the foreseen expiry date). The substantive legal 
basis  of  the  Council  decision  must  be  determined  in  the  light  of  the  Cotonou  Partnership 
Agreement as a whole.4 

The  CPA  has  been  concluded  as  an  association  agreement  and  thus  was  based  on  Article 
310 of the Treaty establishing the European Community, the equivalent of Article 217 TFEU. 
It follows that the substantive legal basis of the proposed decision is Article 217 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article 217 TFEU,  in  conjunction  with 
Article 218(9) TFEU. 

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in  particular, 

See, 
judgment 
[ECLI:EU:C:2018:662], p. 40 and the case law referred to. 

in  case  C-244/17  Commission  v  Council 

(“Kazakhstan”) 

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2019/0116 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the ACP-EU Council of 
Ministers as regards the delegation of powers to the ACP-EU Committee of 
Ambassadors on the decision to adopt transitional measures to extend the ACP-EU 
Partnership Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 217, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  Partnership  Agreement  between  the  members  of  the  African,  Caribbean  and 
Pacific Group of States ('ACP') of the one part, and the European Community and its 
Member States, of the other part ('the ACP-EU Partnership Agreement')]5 was signed 
in Cotonou on 23 June 2000. The ACP-EU Partnership Agreement entered into force 
on 1 April 2003 and is to be applied until 29 February 2020. 

In  accordance  with  the  first  subparagraph  of  Article  95(4)  of  the  of  the  ACP-EU 
Partnership Agreement,  negotiations towards  a new ACP-EU Partnership Agreement 
were  launched  in  September  2018.  In  case  the  new  Agreement  is  not  ready  to  be 
applied  by  the  expiry  date  of  the  current  legal  framework,  it  is  necessary  to  adopt 
transitional measures to extend the application of the current Agreement. 

The  second  subparagraph  of  Article  95(4)  of  the  ACP-EU  Partnership  Agreement 
provides  for  the  Council  of  Ministers  to  adopt  transitional  measures  to  extend the 
applicability  of  all  or  parts  of  the  ACP-EU  Partnership  Agreement,  until  the 
provisional application or entry into force of the new Agreement. 

Pursuant  to  Article  15(4)  of  the  ACP-EU  Partnership  Agreement,  the  ACP-EU 
Council  of  Ministers  may  adopt  a  decision  to  delegate  powers  to  the  ACP-EU 
Committee of Ambassadors, including the power to adopt the decision on transitional 
measures. 

The  ACP-EU  Council  of  Ministers  is  to  have  its  yearly  ordinary  meeting  on  23-24 
May  2019  in  Brussels.  The  transitional  measures  have  not  been  agreed  and  can 
therefore not be adopted by the ACP-EU Council of Ministers at its ordinary meeting. 
As no further meetings  of the ACP-EU Council of Ministers are foreseen before the 
expiry of the ACP-EU Partnership Agreement, in order to ensure that the decision on 
transitional measures  is  taken in  a timely manner, it is  necessary that the decision to 

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Agreement  (OJ  L317,  15.12.2000,  p.  3)  as  amended  by  the  Agreement  signed  in  Luxembourg  on  25 
June 2005 (OJ L209, 11.8.2005, p.27) and by the Agreement signed in Ouagadougou on 22 June 2010 
(OJ L287, 4.11.2010, p 3). 

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adopt  transitional  measures  pursuant  to  Article  95(4)  of  the  ACP-EU  Partnership 
Agreement, be delegated to the ACP-EU Committee of Ambassadors. 

During  its  44th  session  the  ACP-EU  Council  of  Ministers  is  to  adopt  a  decision 
delegating  the  powers  to  adopt  transitional  measures  to  the  ACP-EU  Committee  of 
Ambassadors (‘the envisaged act’). 

It is appropriate to establish the position to be taken on the Union's behalf in the ACP-
EU Council of Minister, as the envisaged act is binding on the Union. 

The  position  of  the  Union  to  approve  the  envisaged  act  in  the  ACP-EU  Council  of 
Ministers should be set out in this decision, 

(6) 

(7) 

(8) 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the 44th session of the ACP-EU Council of 
Ministers  shall  be  to  approve  the  delegation  of  powers  to  the  ACP-EU  Committee  of 
Ambassadors, in accordance with Article 15(4) of the ACP-EU Partnership Agreement, on the 
decision  to  adopt,  pursuant  to  Article  95(4)  of  the  ACP-EU  Partnership  agreement,  any 
transitional measures that may be required until the new Agreement comes into force. 

This Decision is addressed to the Commission. 

Article 2 

Done at Brussels, 

For the Council 
The President 

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